Why the ICC’s Strength May Lie in its Limitations

What marks the last Assembly of States Parties (ASP12) that took place in The Hague from 20-28 November is the increasingly recognized importance of the foundational principles of the International Criminal Court. A focus on the Court’s complementarity regime is – for reasons related both to legitimacy and effectiveness – more timely than ever.

Although the attention of the international criminal legal community was focused on The Hague last week, the success of the Court, now and in the future, rests on enhanced domestic investigation and prosecution of those accused of international crimes. Drawing on this understanding, states should increasingly invest in capacity building and technical assistance so that international crimes can be tried in the countries in which they were committed.

Many diplomats, particularly from Africa, are expressing disagreement about the Court’s functioning. The talk of the town in The Hague, during several of the official ASP12 meetings and side-events, was a call for an explanation from the Court’s officials about its role. To give just one example, Libya has become an interesting test case of the Court’s complementarity regime. At the time of their issuance, Libyans mostly welcomed the arrest warrants for Saif al-Islam Gaddafi and Abdullah al-Senussi. Libyans were mainly grateful and interpreted the arrest warrants as support for the revolution that ultimately resulted in the overthrow of the Gaddafi regime.

However, some two and a half years later, there is widespread discontent about the resulting difference in the treatment of these suspects. Numerous Libyans dread that, while Al-Senussi will be tried in Libya, Saif al-Islam Gaddafi will probably stand trial in The Hague, far away from all those affected by the former regime. Consequently, many people will still feel that justice has not been done.

The overall response by Court officials is important, but insufficient. More engagement is vital, including early outreach and field presence. Certainly, Court officials should better explain the Court’s legal decision-making process in relation to the issuance of arrest warrants, such as in the situation of Libya. However, such explanations of the more technical details will not result in more support for the Court. For more and better backing, Court officials have to go one step further and manage expectations. Therefore, Court officials should explain how criminal law is, and should be, the means of last resort, as many criminal lawyers and jurists will admit. The understanding that, equally, international criminal law is, and ought to be, an ultimum remediumcomes with the maturing of the system.

Moreover, Court officials will have to actively promote decentralization to potentially competing bodies. Although this might be counterintuitive – as it would be for almost every organization – the Court will not survive and thrive unless it uses outreach potential to promote domestic adjudication of international crimes. Finally, Court officials will have to demonstrate that they understand that the Court’s work is as much a political enterprise as a legal one. An explanation which is limited to the juridical technicalities will not advance the understanding about the Court’s important work.

Hence, now is the time to actively evoke the inherent limitations of the international criminal regime and thereby promote enhancement of capacity building and technical assistance within states and regions. In this way, victims will benefit from the demonstrative effect of fair trial guarantees at the international level, while justice is also done in their immediate jurisdiction that benefits of efforts that foster a rule of law culture at the national level.